Citation Nr: 0204576
Decision Date: 05/15/02 Archive Date: 05/24/02
DOCKET NO. 98-17 743A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for a bilateral hearing
loss disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. D. Deane, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1943 to
December 1945.
This case comes to the Board of Veterans' Appeals (Board)
from a September 1998 rating decision rendered by the
Montgomery, Alabama, Regional Office (RO) of the Department
of Veterans Affairs (VA) wherein service connection for a
bilateral hearing loss disability was denied.
In August 1999, the Board remanded the case for clarification
of the veteran's desires for hearing before a Member of the
Board. In May 2000, the veteran was afforded a hearing
before the undersigned Member of the Board sitting at the RO.
In July 2000, the Board remanded the case for further
evidentiary development. The RO obtained VA outpatient
treatment records and the veteran was given a VA audiological
examination.
FINDINGS OF FACT
1. All the evidence requisite for an equitable disposition
of the veteran's claim has been developed and obtained, and
all due process concerns as to the development of his claims
have been addressed.
2. Bilateral hearing loss was not present during service,
only initially shown many years following the veteran's
separation from service and not shown to be related to
activities in service.
CONCLUSION OF LAW
Bilateral hearing loss was not incurred in or aggravated by
active service. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2001);
38 C.F.R. §§ 3.303, 3.385 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection is granted for a disability resulting from
an injury suffered or disease contracted while in active duty
or for aggravation of a preexisting injury suffered or
disease contracted in the line of duty. See 38 U.S.C.A.
§§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303
(2001). In addition, certain disorders may be presumed to
have been incurred during service when manifested to a
compensable degree within a specified time (usually one-year)
following separation from service. See 38 C.F.R. §§ 3.307,
3.309 (2001).
Under 38 C.F.R. § 3.385, impaired hearing will be considered
to be a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of the frequencies 500, 1000, 2000, 3000, or 4000
Hertz are 26 decibels or greater; or when speech recognition
scores using the Maryland CNC Test are less than 94 percent.
See 38 C.F.R. § 3.385 (2001).
The veteran contends that he currently suffers from bilateral
hearing loss as a result of inservice noise exposure as a
laundryman, and that service connection for his bilateral
hearing loss disability is appropriate. After a review of
the evidence, the Board finds that his contentions are not
supported by the record, and that his claim for service
connection for a bilateral hearing loss disability must fail.
I. Service Connection for Bilateral Hearing Loss
The veteran's service medical records are unavailable. The
National Personnel Records Center reported in 1998 that they
did not have such records for the veteran, and that they had
probably been accidentally destroyed in a 1973 fire at that
facility. The veteran has submitted private medical records,
VA outpatient treatment records, and his own statements to
support his claim.
In the December 2001 VA Compensation and Pension examination
report, the physician diagnosed the veteran with mild to
profound sensorineural hearing loss from 250 to 8000 Hz in
the right ear and moderate to severe sensorineural hearing
loss in the left ear from 250 to 8000 Hertz. Under 38 C.F.R.
§ 3.385, the veteran has a hearing loss disability for VA
purposes. Between the frequencies of 500 to 4000 Hertz, the
veteran's auditory threshold ranged from 40 to 85 decibels in
his right ear and from 55 to 75 decibels in the left ear.
See 38 C.F.R. § 3.385 (2001). The examiner stated that it is
as least as likely as not that noise exposure had some effect
on the veteran's hearing. However, the physician noted in
the examination report that it was unlikely that the noise
generated by the laundry machines would be over 90 decibels,
which is considered the allowable level of noise exposure for
an eight hour day. The examining physician also stated that
it is not at least as likely as not that the laundry related
noise is responsible for the veteran's current levels of
significant hearing loss.
The Board acknowledges that the appellant, at his personal
hearing, testified that he suffered from bilateral hearing
loss due to noise exposure as a laundryman during service.
The veteran has not demonstrated that he has the medical
expertise that would render competent his statements as to
the relationship between noise exposure during service and
his current bilateral hearing loss disability. His opinion
alone cannot meet the burden imposed by 38 C.F.R. § 3.303
with respect to the relationship between noise exposure
incurred during service and his current disability. See
Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The veterans' statements qualify as competent lay evidence.
Competent lay evidence is any evidence not requiring that the
proponent to have specialized education, training, or
experience. Lay evidence is considered competent if it is
provided by a person who has knowledge of facts or
circumstances and who can convey matters that can be observed
and described by a layperson. See 66 Fed. Reg. 45,620,
45,630 (Aug. 29, 2001) (to be codified as amended at 38
C.F.R. § 3.159(a)(1)). Competent medical evidence is
evidence provided by a person who is qualified through
education, training, or experience to offer medical
diagnoses, statements, or opinions. See 66 Fed. Reg. 45,620,
45,630 (Aug. 29, 2001) (to be codified as amended at 38
C.F.R. § 3.159(a)(2)). Competent medical evidence is
considered more probative than competent lay evidence.
In brief, the record does not show that the veteran's
bilateral hearing loss was incurred in or aggravated by
service. Since evidence of the veteran's bilateral hearing
loss disability did not show until many years following his
separation from service, it cannot be presumed that any
symptoms of those disabilities now present were incurred
during service. See 38 C.F.R. §§ 3.307, 3.309 (2001). While
the veteran's audiology test results show he suffers from
bilateral hearing loss, the December 2001 examination report
does not state that the veteran's current bilateral hearing
loss was due to the noise exposure he experienced as a
laundryman during service. In fact, the examiner opined
otherwise. The Board finds that the veteran's claim of
service connection for a bilateral hearing loss disability
must be denied.
II. Duty to Assist
A change in the law, on November 9, 2000, redefined the
obligations of VA with respect to the duty to assist and
included an enhanced duty to notify the claimant of the
information and evidence necessary to substantiate a claim
for VA benefits. See Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West Supp.).
Implementing regulations for VCAA have been published. 66
Fed. Reg. 45,620 (Aug. 29,2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Except
for amendments not applicable, these provisions of the
regulations merely implement the VCAA and do not provide any
rights other than those provided by the VCAA. 66 Fed. Reg.
45,629 (Aug. 29, 2001).
The RO advised the veteran of the evidence necessary to
support his claim for entitlement to service connection for
bilateral hearing loss in a Statement of the Case issued in
October 1998 and a Supplemental Statements of the Case issued
in both January 1999 and January 2002. The veteran has not
indicated the existence of any pertinent evidence that has
not already been requested, obtained, or attempted to be
obtained. The RO made all reasonable efforts to obtain
relevant records adequately identified by the veteran. All
evidence identified by the veteran relative to this claim has
been obtained and associated with the claims folder. The
Board finds that VA's duty to assist the claimant under
applicable provisions has been satisfied.
ORDER
Service connection for a bilateral hearing loss disability is
denied.
MARK W. GREENSTREET
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.